James J. Kilpatrick A Difficult Burden Of Proof

May 04, 1986|The Morning Call

The U.S. Supreme Court handed down an opinion the other day of primary interest to those of us in the news business. The opinion will make it tougher for private persons, as distinguished from public figures, to sue us successfully for libel. I think the opinion was wrong.

These were the facts: In a series of five articles between May 1975 and May 1976, The Philadelphia Inquirer made serious charges involving Maurice S. Hepps. The newspaper reported that Hepps, as principal stockholder of a chain of "Thrifty" stores, had received specially favored treatment from the Pennsylvania Liquor Control Board. The articles discussed a state legislator, described as "a Pittsburgh Democrat and convicted felon" whose actions "displayed a clear pattern of interference in state government by (the legislator) on behalf of Hepps and Thrifty."

The stories reported that federal investigators "have found connections between Thrifty and underworld figures." It was said that "the Thrifty beverage beer chain . . . had connections with organized crime."

Hepps sued for libel. He lost in the trial court, but the Pennsylvania Supreme Court reversed and remanded the case for a new trial. On April 21 the U.S. Supreme Court reversed that judgment. Unless Hepps can prove at some subsequent retrial that the newspaper stories were false, Hepps will have lost and the newspaper will have won.

In this particular case, such an outcome may well be justified. The Inquirer has a high reputation within the newspaper fraternity; its reporters do not fling reckless accusations with disregard to their truth or falsity. All the same, the Supreme Court's opinion significantly alters the rules of combat. Henceforth, "A private-figure plaintiff must bear the burden of showing that the speech at issue is false before recovering damages for defamation from a media defendant."

The high court split 5-4 in the Hepps case. Justice Sandra Day O'Connor, joined by Justices Powell, Brennan, Marshall and Blackmun, observed that the Inquirer's articles obviously dealt with matters "of public concern." This was speech "that matters." The charges involved a state agency and a state legislator.

The trouble is that not all speech is provably true or provably false. Under the old common law, it was presumed that defamatory statements were false, and it was up to a newspaper to prove the truth of its stories. That rule, said O'Connor, has to yield to the First Amendment's commandment that freedom of the press cannot be abridged. "We believe that the Constitution requires us to tip (the scales) in favor of protecting true speech." The common law presumption cannot stand "when a plaintiff seeks damages against a media defendant for speech of public concern."

The four dissenters, speaking through Justice John Paul Stevens, strongly disagreed. The majority had grossly undervalued "the strong state interest in redressing injuriesto private reputations." Stevens called the opinion "pernicious," a "blueprint for character assassination." The decision "trades on the good names of private individuals with little First Amendment coin to show for it."

If all libel suits involved publications at the level of The Philadelphia Inquirer, Stevens' dissent could be written off as hyperbole. Unfortunately, the "media" include a number of scurrilous tabloids whose stock in trade lies in sensational gossip and veiled allegations of misdoing. When such publications smear public figures, the public figures can fight back. Private individuals have a tougher time.

Twenty years ago, in what I thought was a light piece, I said of a certain establishment that it was "a second-rate delicatessen." The owner sued for $5,000 in libel. My fire-eating thought was to go to trial, plead truth and prove the charge. Our lawyers, not so bellicose, settled out of court for 400 bucks. But suppose the case had gone to trial under O'Connor's decision. How would the owner have proved that his store was NOT a second-rate delicatessen?

To be sure, this was not speech of "public concern." It didn't "matter." All the same, this new rule - that a defamed plaintiff must prove the falsity of the allegations against him - may give the media more than we ought to have. When O'Connor set out to tilt the scales, she used a heavy thumb.